Politics & Policy

Supremely Wrong

Secret hearings, gagged witnesses, blocked access, closed-door deals. There oughta be a law.

Machine politics is generally associated with cities, the cynical cronyism that is the prerequisite to wholesale corruption and urban decay. But these days it’s at its worst in, of all places, Kansas, under the governorship of leading Democratic vice-presidential contender, Kathleen Sebelius.

Just ask Phill Kline.

The former state attorney general and current district attorney of Johnson County, in suburban Kansas City, Kline is that most unfortunate of political creatures — the inspired reformer. The object of his quixotic campaign is to reform the abortion laws of Kansas – not by changing them, but by simply enforcing them.

In a place like Kansas, you might think, that’s T-ball politics — but that would only be in the Kansas of popular (and Thomas Frank’s) imagination, where wily conservatives are winning the culture wars. They’re definitely not, as Kline now knows well. He started his mission after being elected attorney general in 2002. After six years, he has been so badly mangled by Kansas’s political machinery that he’s the one under siege.

That’s his punishment for conducting a string of long and fruitful investigations that appear to show that the state’s largest abortion providers — including Johnson County’s Planned Parenthood clinic and George Tiller’s infamous late-term-abortion clinic in Wichita — have not only performed illegal abortions, they’ve also falsified documents as part of a cover-up.

A simple plan

Kline’s strategy was simple: Kansas law requires abortion clinics to document the procedures they perform. Kline suspected that they had performed illegal late-term abortions and abortions on underage girls. To find the truth, he needed to compare the documents sent by the subpoenaed clinics with the records submitted by the clinics to the state health department in the routine reporting of their abortions. It wasn’t a fishing trip; Kline knew what he was looking for.

When, after a long battle, the records finally arrived, Kline asked a district judge, Richard Anderson, to compare the two sets of documents. Anderson hired experts, removed the personal info, went over them all carefully and in a pre-trial hearing, finally said, “it appears someone has manufactured” portions of the paperwork that had been subpoenaed. Anderson said that could mean “that somebody committed a felony in an attempt to cover up a misdemeanor. . . . [T]here is evidence of crimes in those records that needs to be evaluated.”

That’s when things turned tough. Kline’s alleged perps aren’t exactly street-corner thugs. Tiller’s money has pumped hundreds of thousands of dollars into the state’s political machine. He exerts enormous sway through his ProKanDo PAC and other funding conduits.

And Planned Parenthood’s no pushover, either, just by dint of the $300 million in taxpayer funding the organization gets every year.

Lately, they’re increasingly being portrayed as irresponsible in their abortion practices. In Texas, for example, Planned Parenthood has been accused of covering up statutory rape cases. In California, the organization’s accused of mismanaging funds. And in Ohio, where pro-life activists got Planned Parenthood operators on tape agreeing to funnel contributions to target African Americans, the parents of a 13-year-old girl are suing Planned Parenthood because neither they nor the police were informed when her 21-year-old soccer-coach “boyfriend” brought her in for an abortion. In Congress, Rep. Mike Pence, an Indiana Republican, is leading a campaign to end Planned Parenthood’s funding.

Kicking Kline

But it’s the Kansas case that has drawn the most attention, because in Kansas City, the organization is a brick in the establishment wall and because Sebelius sits atop that wall, waiting for Obama’s call. The governor, civic leaders, and the state’s largest newspaper, the Kansas City Star, have all participated in fundraising events for Planned Parenthood. The organization awarded the Star a “Maggie” for its work supporting Planned Parenthood, and the paper actually accepted the thing. When the abortion clinics came under fire, the local press, the governor, and the state’s peculiar supreme court circled the wagons. Suddenly enforcing a state law became an invasion of privacy and a crazy prosecutor’s nutty obsession. Kline-kicking is by now a favorite pastime of most Kansas journalists.

It’s not become easier for Kline over the years. On Wednesday, Operation Rescue published photos of a get-together at the governor’s mansion with Tiller and his crew, and the protecting veil of the Kansas media that usually descends in front of Sebelius tore, but just a little. As word of the photos spread, the Star was forced to run a coy story about “Sebelius, standing near a man who appears to be Tiller” (hey! could’ve been a celebrity lookalike).

For a whole local news cycle, it must have seemed to Kline as if the clouds were finally lifting. But gossip over photos of Sebelius goofing around in her off-time with abortionists aside, it’s the governor’s other friends who are the ones causing him real distress, because those friends all sit on the Kansas supreme court.

Kline’s long process of trying to bring the same kind of enforcement to abortions that the state brings to guys who like to fish has been made immeasurably longer by Kansas’s very odd supreme court, the flying buttress holding up the state’s gothic political syndicate. Unlike most states, where some sort of public examination takes place before somebody is given the state’s highest judicial post, in Kansas the system seems designed to honor cynicism.

Here’s how it works: When the state needs a new justice, the supreme-court nominating committee decides whose names will be sent to the governor for appointment. A majority of that committee is elected by the state’s lawyers — regular citizens don’t get a say. The rest of the committee is composed exclusively of the governor’s appointees. The committee sends three names to her and she picks the one she likes best. That’s it; no confirmations, no hearings, no scrutiny for people who – to most of the state’s citizens – are nobodies, and for all anybody knows, perhaps deservedly so. (I wrote about the court here; University of Kansas law professor Stephen Ware discusses the court’s bizarre selection process for the Federalist Society here.)

In Kansas there has never been a conservative governor and most of the time the governor’s a Democrat anyway, so it’s not surprising that the Kansas court is as liberal and as activist as they come — the sixth-most-referenced court in the nation, according to one recent survey conducted by UC Davis.

“Unorthodox” judicial behavior

But the moment Judge Anderson said the records looked fishy, the court went from activist to downright aggressive: It silenced the judge, conducted secret hearings with Planned Parenthood, put a gag on the health department and told Kline the department’s records have now been put off-limits. In at least once instance, the court apparently even violated its own seal order to give anti-Kline information to participants in a grand jury investigation.

It’s all “highly unorthodox,” Judge Andrew P. Napolitano, Fox News senior judicial analyst, told me.

“The Kansas supreme court has no right to intercede in this,” Napolitano explained. The court simply doesn’t have a role to play “unless a case is brought to it.” Gagging witnesses was just mystifying to Napolitano. “If a judge is witness to a crime, he has as much a right and obligation to testify as any other citizen,” he said. What the judge appears to have seen, Napolitano said, is evidence of “obstruction of justice. . . . And that’s what they got Scooter Libby on. It’s a serious crime.”

This kind of chicanery has delayed justice endlessly. Kline leaves office soon; maybe the court thinks all it has to do is wait him out. For now, the justices work closely with the state attorney general who is doing everything he can to stymie Kline’s investigation. At one point, the attorney general sent a Planned Parenthood lawyer to Anderson’s chambers. The man arrived unannounced and said he had been sent to collect the records that were being kept as evidence. Fortunately, Anderson, who is a rare brave man for standing up to the state’s supreme career-enders, turned him away. Few of the people I spoke to for this article wanted their names to appear in it.

District courts have allowed the records to follow Kline on his long quest to simply enforce a state law. When his case against Planned Parenthood started in 2003, he was the state attorney general. In 2006, as he was moving ahead on the Planned Parenthood case, he was defeated by Paul Morrison, a Sebelius pol who received massive infusions of cash from Tiller’s PAC and from a bioresearch billionaire who wants Kansas to embrace fetal stem cell research.

Morrison outspent Kline four-to-one, won handily, was hailed by the New York Times and almost immediately announced he was closing the investigation of Planned Parenthood. Simultaneously, Kline took up Morrison’s old job as district attorney in Johnson County, and two judges, including Anderson, permitted the evidence to be taken with him so the prosecution could continue. This enraged Morrison who started a petty, one-man letter-writing campaign to have Kline’s Johnson County salary cut.

But then Morrison was caught in a sex scandal involving a woman who worked in the Johnson County DA’s office. Allegedly, he wanted to use the woman as a mole to influence Kline’s investigation of Planned Parenthood, but she refused to go along. Morrison resigned in disgrace, but Sebelius appointed another political ally, a judge named Stephen Six who has continued the Sebelius jihad against not only Kline’s prosecution, but against Kline personally. For all his trouble, Kline has been pestered by Planned Parenthood’s lawyers who continue to try to sue him into paralysis. He has now amassed some $200,000 in personal legal bills.

Napolitano: Impeach ‘em

This week, in the case’s latest set of turns, Kline found himself asking for the supreme court to stop silencing Anderson and at the same time, moving to block a lawsuit by Planned Parenthood seeking to get back the records that are at the heart of the case, and would be used against them in a trial. Allowing criminal defendants to sue prosecutors to retrieve the evidence that could be used against them is another Kansas Supreme Court novelty.

Napolitano accused the court of violating the separation of powers — a repeat of something many Kansans thought the court did in 2005, when they determined the exact dollar figure the legislature must spend on upholstering the state’s educational bureaucracy. Kline, he pointed out, is fulfilling the legal functions of the executive branch and the supreme court has no right to get in the way. He thought Kline had two options: “One, to persuade the people that the justices should be impeached, or, two, take the case to a federal judge” where the state supreme court’s apparent obstruction could be deliberated.

Caleb Stegall, Kline’s lead attorney, saw the case in simple terms. “Laws restricting and governing abortion are worthless if they cannot be enforced,” he said, “and up until today, they have not been enforced. Planned Parenthood wants to keep it that way. So the message being sent by this case as a whole is if you try to enforce these laws, if you even try to talk about enforcing these laws, we will bury you. This overriding message has seeped into our body politic and threatens to corrupt some of our most basic and cherished principles such as freedom of speech and political debate, the rule of law, and the principle of equality before the law.”

After I spoke to Stegall, I came across Planned Parenthood’s latest explanation for why the documents don’t match: They now say they never intended to suggest that the records they supplied were made by a copier. Instead, they now claim the copies had been written out by hand by office workers.

The local papers ate that up. But Stegall told Kansas Liberty, a state politics and news site, if Planned Parenthood wanted to attempt to persuade a jury that in the year 2003, rather than using a copier, they had “a team of monks squirreled away in their basement copying records,” they were welcome to do so.

The Kansas supreme court would certainly believe them.

 Denis Boyles is the author, most recently, of Superior, Nebraska. He teaches at The Brouzils Seminars.

Denis BoylesDennis Boyles is a writer, editor, former university lecturer, and the author/editor of several books of poetry, travel, history, criticism, and practical advice, including Superior, Nebraska (2008), Design Poetics (1975), ...


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